NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

JULIA A. HESSON, INDIVIDUALLY, AND AS 

GUARDIAN AND ON BEHALF OF MINOR 

CHILDREN M.H. AND R.H.,

Petitioner

v.

DEPARTMENT OF JUSTICE,

Respondent

______________________ 

2016-1029

______________________ 

Petition for review of a decision of the Bureau of Justice Assistance in PSOB Case No. 2010-081. 

______________________ 

Decided: November 8, 2016 

______________________ 

JAMES M. WILLIAMS, Krugliak, Wilkins, Griffiths & 

Dougherty Co. L.P.A., Canton, OH, for petitioner.

COURTNEY D. ENLOW, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for respondent. Also represented by 

BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,

ELIZABETH M. HOSFORD; RAFAEL ALBERTO MADAN, JASON 

P. COOLEY, Office of the General Counsel, Office of Justice 
2 HESSON v. DOJ

Programs, United States Department of Justice, Washington, DC.

______________________ 

Before LOURIE, MOORE, and O’MALLEY, Circuit Judges.

PER CURIAM. 

Julia Ann (née Bernhardt) Hesson (“Bernhardt”) 

appeals, on behalf of herself and her minor children, from 

the decision of the Department of Justice’s Bureau of 

Justice Assistance (“BJA”) approving the claim of Julie 

Ann (née Keady) Hesson (“Keady”) for spousal benefits 

under the Public Safety Officers’ Benefits Act (the “PSOB 

Act”), 42 U.S.C. §§ 3796 et seq. Corrected Joint Appendix 

(“J.A.”) 1–6. Because the BJA correctly determined that

Keady was the surviving spouse under the PSOB Act, we 

affirm. 

BACKGROUND

On April 29, 2009, William Hesson (“Hesson”), a corrections officer, was physically assaulted while on duty. 

J.A. 14. He subsequently died as a result of injuries he 

sustained in the assault. Id. 

Prior to his death, Hesson participated in three marriage ceremonies and had six children. Id. at 3. Hesson 

and his first wife, Donna (née Schmucker) Hesson, had 

two children and were divorced on May 24, 1993. Id. 

On February 25, 1995, Hesson married Keady in 

North Carolina; the couple had two children. Id. On 

March 23, 1999, Hesson and Keady separated and Keady 

moved to New York. Id. at 14. Keady attempted to 

divorce Hesson by filing a petition for divorce in New 

York; however, because she was unable to locate him, she 

never served him with the divorce petition. Id. Thus, 

Keady and Hesson were never legally divorced. Id. at 5.
HESSON v. DOJ 3

On August 14, 2004, a marriage ceremony between 

Hesson and Bernhardt was performed in Ohio. Id. at 14. 

Hesson and Bernhardt subsequently had two children

together. Id. at 3.

Following Hesson’s death, Bernhardt, Keady, and his 

children sought death benefits under the PSOB Act. The 

PSOB Act “provides a one-time cash payment to survivors 

of ‘a public safety officer [who] has died as the direct and 

proximate result of a personal injury sustained in the line 

of duty.’” Juneau v. Dep’t of Justice, 583 F.3d 777, 779 

(Fed. Cir. 2009) (quoting 42 U.S.C. § 3796(a)) (alteration 

in original). The PSOB Act dictates the division of the

payment among survivors and provides, in relevant part:

if there is at least 1 child who survived the public 

safety officer and a surviving spouse of the public 

safety officer, 50 percent to the surviving child (or 

children, in equal shares) and 50 percent to the 

surviving spouse; [or] if there is no surviving 

spouse of the public safety officer, to the surviving 

child (or children, in equal shares) . . . .

42 U.S.C. § 3796(a). Thus, a surviving child’s payment

amount depends on the number of surviving children and 

whether there is a surviving spouse.

On October 1, 2010, the Public Safety Benefits Officer 

(“PSBO”) determined that the death of Hesson was covered by the PSOB Act and that each of Hesson’s six 

children was entitled to an equal share of half of the 

benefit amount. J.A. 31. The PSBO gave Bernhardt 

additional time to investigate whether Hesson and Keady 

had been legally divorced. Id. at 32. 

On February 24, 2011, the PSBO determined that

Keady was Hesson’s surviving spouse and thus entitled to 

the remainder of the benefit amount. Id. at 17. The 

PSBO found that no evidence was submitted of a lawful

divorce between Hesson and Keady, and that Keady had 
4 HESSON v. DOJ

not held herself out as divorced from, or not being married 

to, Hesson. The PSBO explained that Hesson could not 

have lawfully entered into marriage with Bernhardt in 

Ohio on August 14, 2004 because, under Ohio law, “[o]ne 

who is already married has no capacity to enter into 

another marriage contract, either ceremonial or [at]

common law.” Id. at 15 (quoting Darling v. Darling, 335 

N.E.2d 708, 710 (Ohio Ct. App. 1961)).

Bernhardt appealed the PSBO’s determination and 

requested review by a Hearing Officer. Bernhardt alleged 

that Keady had held herself out as being divorced from, or 

not married to, Hesson and thus Keady was not the 

surviving spouse. The Hearing Officer conducted a de 

novo review of the record, subpoenaed additional documents from Keady, and held a hearing where he examined Keady. Prior to the hearing, the Hearing Officer 

denied Bernhardt’s request for certain documents from 

Keady. Id. at 2. 

On July 15, 2013, the Hearing Officer found that 

Bernhardt did not provide any evidence showing that 

Keady was ever divorced from, held herself out as divorced from or not married to, or married to someone 

other than, Hesson. Id. at 25. The Hearing Officer denied Bernhardt’s claim and concluded that Keady, not 

Bernhardt, was Hesson’s lawful spouse at the time of his 

death and was entitled to the spousal benefit under the 

PSOB Act. Id. at 29.

Bernhardt then requested a determination of the 

claim by the Director of the BJA. Bernhardt also submitted a letter “reiterating” the request for “a hearing and 

the right to examine Julie Keady” and requesting documents. Id. at 2. The Director found that the information 

sought was unnecessary to determining whether Keady 

was divorced under the PSOB regulations and that its 

“sensitive nature . . . suggests that it should not be disclosed to [Bernhardt].” Id. at 3. The Director conducted a 
HESSON v. DOJ 5

de novo review of the record and concluded that, under 

the PSOB Act, Bernhardt was not entitled to benefits 

because she was not a “spouse” and that Hesson’s lawful 

“surviving spouse” was Keady. Id. at 6.

Bernhardt appealed to this court on behalf of herself 

and her minor children. We have jurisdiction pursuant to

42 U.S.C. § 3796c–2. Juneau, 583 F.3d at 780. 

DISCUSSION

“Our review of a denial of benefits under the PSOB 

Act by the BJA is limited to three inquiries: ‘(1) whether 

there has been substantial compliance with statutory 

requirements and provisions of implementing regulations; 

(2) whether there has been any arbitrary or capricious 

action on the part of the government officials involved; 

and (3) whether substantial evidence supports the decision denying the claim.’” Id. (quoting Amber-Messick v. 

United States, 483 F.3d 1316, 1321 (Fed. Cir. 2007)).

Bernhardt argues that the BJA failed to substantially 

comply with the PSOB Act’s statutory requirements and 

implementing regulations by misapplying the term “divorce” in 28 C.F.R. § 32.3. Appellant’s Br. 10. She asserts

that the BJA should have considered the actions of Hesson, in addition to those of Keady, to determine that

Keady and Hesson were divorced and that Hesson died 

unmarried. Bernhardt does not contest on appeal the 

BJA’s conclusion that she was not a “spouse” under the 

PSOB Act. J.A. 4. Instead, Bernhardt argues that Keady 

was not Hesson’s surviving spouse for purposes of the 

PSOB Act and that the entire PSOB Act benefit should

therefore be divided equally among Hesson’s children. 

The government responds that the BJA’s interpretation of its own regulation is entitled to substantial deference and that the interpretation was consistent with the 

regulation and reasonable. Appellee’s Br. 12.
6 HESSON v. DOJ

We agree with the government that the BJA substantially complied with the statutory requirements and the

provisions of the implementing regulations. “The Supreme Court has held that an agency’s interpretation of 

its own regulations is entitled to substantial deference by 

the courts.” Smith v. Nicholson, 451 F.3d 1344, 1349 

(Fed. Cir. 2006) (collecting cases); see also Groff v. United 

States, 493 F.3d 1343, 1350 n.2 (Fed. Cir. 2007). The 

BJA’s “interpretation of its own rule or regulation is 

entitled to ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’” White v. United 

States, 543 F.3d 1330, 1333–34 (Fed. Cir. 2008) (quoting 

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 

(1945)). 

The PSOB Act authorizes a benefit for a “surviving 

spouse,” but does not define that term. Congress authorized the BJA to “establish such rules, regulations, and 

procedures as may be necessary to carry out the purposes 

of [the Act].” 42 U.S.C. § 3796c(a); see also Groff, 493 F.3d 

at 1350. The BJA promulgated regulations defining

“spouse” and “divorce.” “Spouse means someone with 

whom an individual entered into marriage lawfully . . .

and from whom the individual is not divorced, and includes a spouse living apart from the individual, other 

than pursuant to divorce. . . .” 28 C.F.R. § 32.3 (emphasis 

added). 

Divorce means a legally-valid divorce from the 

bond of wedlock (i.e., the bond of marriage), except 

that, otherwise, and notwithstanding any other 

provision of law, a spouse (or purported spouse) of 

an individual shall be considered to be divorced 

from that individual within the meaning of this 

definition if, subsequent to his marriage (or purported marriage) to that individual (and while 

that individual is living), the spouse (or purported 

spouse)—(1) Holds himself out as being divorced 
HESSON v. DOJ 7

from, or not being married to, the individual; (2) 

Holds himself out as being married to another individual; or (3) Was a party to a ceremony purported by the parties thereto to be a marriage 

between the spouse (or purported spouse) and another individual.

Id. The BJA interpreted this regulation in relevant part

to mean “a surviving spouse is divorced if . . . the surviving spouse has held her or himself out as being divorced 

or not married to the decedent spouse, being married to 

another individual, or participated in a marriage ceremony with another individual.” J.A. 5; see also id. at 17. 

Applying the relevant standard, we uphold the BJA’s 

interpretation. The BJA explained that it did not consider the decedent’s actions and representations to determine if the claimant was “divorced” under the PSOB Act

because that interpretation “all too often would have the 

harmful consequence of barring innocent spouses from 

payment.” Id. at 17. For example, if “a decedent husband 

had gone about representing himself as single on weekends or on business trips” Bernhardt’s proposed construction would bar his widow from receiving the surviving 

spouse benefit. Id. The BJA’s interpretation is neither 

plainly erroneous, nor inconsistent with the regulation. 

The BJA considered the actions of Keady and found 

that she had not held herself out as divorced from Hesson. 

At the BJA hearing, Keady testified under oath that she 

never held herself out as being unmarried or divorced 

from Hesson, that she never went through a marriage 

ceremony to someone other than Hesson, and that she 

always acknowledged her married status when dating

others. Id. at 26. The Hearing Officer found Keady’s 

testimony “believable.” Id. at 28. Keady also testified 

that she filed her tax returns as “head of household” and 

never claimed to be divorced on insurance applications, 

official financial documents, or employment paperwork. 
8 HESSON v. DOJ

Id. at 5. Keady’s federal tax returns showed her filing 

status as “head of household.” Id. at 26. 

Bernhardt also argues that the BJA acted arbitrarily

by failing to permit the introduction or consideration of 

additional materials she alleges are relevant to whether 

Keady held herself out as being divorced. Appellant’s Br. 

11. Bernhardt faults the BJA for denying her requests to

subpoena thirteen categories of documents from Keady

and to cross-examine Keady. 

The government responds that the Director did not 

act arbitrarily in denying Bernhardt’s requests for documents or to cross-examine Keady. The government argues that: nothing in the PSOB Act or its implementing 

regulations requires the BJA to obtain evidence for a 

claimant in support of her claim, Appellee’s Br. 25; the

BJA did not prohibit Bernhardt from submitting any 

materials and there were no materials submitted by 

Bernhardt that the BJA did not consider, id. at 28–29; 

and the PSOB regulations do not provide the claimant 

with the right to cross-examine witnesses, id. at 31–32. 

We agree with the government that the BJA did not 

act arbitrarily in denying Bernhardt’s requests. The BJA 

did not prohibit Bernhardt from introducing any evidence 

and there is no evidence that the BJA failed to consider 

the evidence submitted. The BJA was not required to

permit Bernhardt to cross-examine Keady or subpoena 

the requested categories of documents from Keady. In 

any event, the Hearing Officer did subpoena documents 

from Keady, some of which overlap with Bernhardt’s 

requests, and examined Keady at a hearing. Based on its 

consideration of all the evidence, the BJA determined that 

Keady was Hesson’s surviving spouse and therefore

entitled to fifty percent of the PSOB Act payment amount. 

The BJA did not act arbitrarily in reaching this conclusion. 
HESSON v. DOJ 9

We have considered Bernhardt’s remaining arguments and conclude that they are without merit. For the 

foregoing reason, the decision of the BJA is affirmed. 

AFFIRMED

COSTS

No costs.